Category Archives: Senior Tips

Veteran’s Benefits

Understanding the VA Aide and Attendance Pension

Veterans who have served on active duty during wartime are often unaware that they may be eligible for a VA Aide & Attendance Pension to help with the cost of assisted living, adult daycare, skilled nursing, and home care. A veteran’s surviving spouse may also be eligible for this assistance. The amount of this pension may be up to $1881 to $2230 per month, depending on the veteran’s family size, and the funds are given directly to the veteran or surviving spouse to help pay for his or her care.

The general qualifications include:

A veteran must have served on active duty for at least 90 days, with at least one day during wartime.
The veteran must have been honorably discharged.
The veteran must be at least 65, or officially disabled if younger.
A veteran must require help with activities of daily living.
A veteran must meet the income and asset guidelines.

There are three levels of VA Pensions: Basic Pension, Aid & Attendance, and Housebound. A veteran must be eligible for the Basic Pension in order to qualify for the Aid & Attendance and Housebound benefits and must have limited income and assets to be eligible. However, the income and asset guidelines are considered quite generous, given that the VA allows veterans to deduct their projected ongoing medical expenses from their income to reduce the amount of their countable income.

For example, if Bill has an income of $32,000 per year, but has assisted-living expenses of $36,000 per year, he would show a deficit and may be eligible for the full pension amount of $1881 per month, for a single person. With these additional funds, he could easily afford to pay for his assisted-living care. While the guidelines are far more complex than outlined in this brief example, it is helpful to see how a veteran could potentially be eligible. There is also an asset limit of $123,600, not including a primary home and vehicle, as well as a look-back period of three years for gifts and items sold.

Assistance is available for veterans interested in learning more about the VA Aide & Attendance Pension or for those interested in applying. Remember, you do not need to have a service-connected disability to be eligible for this pension. The Veteran’s Service Officers are able to assist with this process at 208-235-7890 or more information can be found online at https://www.benefits.va.gov/pension/aid attendance_housebound.asp. You are also welcome to call our office to obtain more information.

Tom Packer is an Elder Law Attorney serving all of Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

March 2019

Testamentary Special Needs Trust

By setting up a Special Needs Trust for your spouse in your Will, you can improve their quality of life.

If your spouse is disabled and receiving Medicaid or if there is a concern that your spouse may become disabled and need to apply for Medicaid to help pay for care, you may want to set up a Testamentary Special Needs Trust (a Trust created in your Will) to supplement your spouse’s needs beyond what is paid for by Medicaid.

Assets transferred into a Testamentary Special Needs Trust do not trigger the Medicaid asset transfer penalty, nor are they counted for eligibility purposes.The Trust is used to supplement the needs of your spouse over and above his or her care, support and maintenance.

A Special Needs Trust provides for material goods, services and experiences that will make your spouse’s life as pleasant and comfortable as possible. For example, expenditures for travel, companionship, cultural experiences, recreational activities and sporting activities may be paid for out of the Trust. The Trustee may use the income and principal of the Trust to pay for medical or dental treatments for which there are no private or public funds available. Supplemental care (nursing care, for example) rehabilitative services or assistance programs that are not otherwise provided for, may also be considered by the Trustee. In addition, Trust funds may be used to pay for the difference in cost of a private room, rather than a shared room, in institutional settings. All these things can greatly enhance your spouse’s life.

If you pass away before your spouse, and you don’t have a Special Needs Trust, the assets in your estate will go directly to your spouse and he or she would lose eligibility for public assistance programs. Your spouse would have to spend down the assets they received to $2,000 and then reapply for Medicaid. In that case, there would be no funds available to provide for the additional needs of your spouse, as mentioned above.

Supplemental Needs Trusts are legal, appropriate and encouraged by state law and statutes. These Trusts are set up by caring family members to provide for the extra needs of a disabled spouse, beyond what is provided by public benefit programs.

February 2019

Medicaid – Estate Recovery

What to expect when Medicaid pays for your long-term care.

Medicare, which pays for hospital, doctor and medication expenses, does not pay for long-term care. Medicare is an entitlement program that you do not have to pay back. Medicaid funds long-term care services for individuals who meet the qualifying criteria. However, when an individual, 55 years or older, has received Medicaid funds to pay for his or her healthcare, the Department of Health and Welfare, IDHW, is required by federal law to recover the cost of their care through Estate Recovery.

If a married individual, who received Medicaid funds, passes away, IDHW will not make a claim against that person’s estate until the surviving spouse has also passed away. During the surviving spouse’s lifetime, there are no restrictions on how the assets in the estate are used, as long as they are used for the surviving spouse’s benefit, and not given away. In addition, the surviving spouse can continue to live in the house or sell it and make other living arrangements. Whatever is left in the estate when the surviving spouse passes away, is subject to Estate Recovery.

When both spouses have passed away, the Personal Representative of their estate is required to provide written notice of the probate to the Estate Recovery division of IDHW. Estate Recovery is made against real and personal property in the estate. It is also made against property held in a revocable trust or property held in joint tenancy. However, IDHW does not make a claim against the death benefit of a life insurance policy.

There are some exemptions from Estate Recovery. One is, the decedent’s surviving spouse or adult children are allowed to keep any tangible, personal property such as household items, furnishings, automobiles, family heirlooms and personal effects, up to $10,000. Also, if an adult child pays fair market value for any item of property in the estate, they can keep it in the family.

Sometimes, I use this analogy to explain Estate Recovery. When I was in law school, I didn’t have enough money to cover all the expenses, so I took out a student loan. When I graduated, I received a letter from the bank with my loan repayment schedule. Similarly, when a person who received Medicaid “graduates,” or passes away, their estate will receive a claim from Estate Recovery to pay back the money they borrowed to pay for their care.

These are complex laws and regulations. Make sure to speak with someone who has experience in this area before making any decisions.

January 2019

A Gift for You!

This Booklet helps you know how to be more prepared for the future.

Dear valued client,

We are sending you the attached Booklet entitled “A Senior’s Guide to a Well-Planned Future.” This booklet is designed to help you plan today for a better tomorrow, by putting legal documents in place and communicating your desires to your family. We hope that you find it interesting and informative. You may also view the Booklet or download it from our website listed below.

We believe that life is good, and that we can choose to make it even better. Having the opportunity to ‘connect’ with you each month through our Senior Tips is enjoyable for us and we hope it has been helpful to you. Often, we receive comments back from you which makes our day! We hope you have a very Merry Christmas, and we look forward to a happy New Year!

Sincerely, Tom Packer, Sandy Packer and Becca Freeburne

Click here to view & download the booklet

December 2018

Social Security Benefits – When a Family Member Dies

How to handle that final check.

We frequently hear from clients after their spouse has passed away, wondering if they have to return the final Social Security benefit paid to their spouse. It can be a confusing process to figure out Social Security rules, but in this case, the guideline is quite simple, although it can feel unfair.

Here are two things to remember:

Social Security benefits are paid a month behind. For example, the check you receive in December is November’s benefit.
A person must live the entire month to receive the benefits for that month, per Social Security regulations.

For example, if your husband passed away on December 20^th, his estate is entitled to keep the Social Security payment that arrived in December. The payment arriving in December is for November’s benefit, since benefits are paid a month behind.

However, his estate is not entitled to keep the December benefits that would be paid in January, since he did not live the full month of December. In fact, if he dies anytime within the month of December, even if he passes away on December 31^st, his estate is not entitled to December benefits. Putting it simply, the estate will receive a check from Social Security for the last full month that he lived.

What happens if you receive an extra monthly benefit?

In many cases, the funeral home will report the person’s death to Social Security, but if Social Security was not notified prior to the payment being processed, you may receive an extra payment. If the funds are directly deposited into your bank account, you can contact the bank and request that the funds be returned to Social Security. If you receive a paper check, you should return the check to Social Security and do not cash it. To report a death or to apply for benefits, you can call 1-800-772-1213.

As the surviving spouse or as a minor child, you may be eligible for a one-time death benefit of $255. Some spouses are also entitled to widow or widower benefits, although additional regulations apply. However, knowing at least the basic regulations can help you make some sense in a confusing system! We are here to help if you have additional questions.

November 2018

Signatures on Legal Documents

Does it really matter how you sign your name?

When signing legal documents, this question frequently comes up—how should I sign my name? There is not a black and white answer to this question, but here are some guidelines.

There are good reasons to sign your name on legal documents the same way your name is listed on government documents, such as your Social Security card or your Driver’s License. If the document is going to be notarized, a notary public may ask to see your identification card to identify you and compare signatures. The goal is to sign your name in a way that will avoid confusion.

There is no law that I am aware of that says you must sign your name a certain way. But title companies, banks and county assessor’s offices often get particular about how documents are signed, especially documents that transfer title to real property.

Below are some general rules that court clerks and title companies have suggested to me. I realize that sometimes these suggestions might conflict with each other. You can choose the one that fits your situation the best.

Sign your name the way it is listed on government documents that identify you.
Sign your name the same way that it is listed in the heading, the body of the document or the signature line.
If you are signing a deed, sign your name the same way that it was written in the deed that transferred the property to you. Sometimes when your name has been written multiple ways on previous deeds, you can state your name and then state, “also known as”, then write your name the other ways that it was written previously.
If you have a common name or the same name as a parent, use your full name, with your middle name, or Jr. or Sr. if applicable, to avoid confusion.

Generally speaking, a person is not going to escape liability, or on the other hand a contract or other legal document is not going to be invalidated because you didn’t use your full name, your name is misspelled, or you signed Bill Smith when your name is William Smith.

Signing your name as indicated above will avoid confusion and make it easier for title companies and assessor’s offices to verify your signature.

October 2018

Property – Community or Separate?

Separate Property May Become Community Property if it is commingled.

I recently received a call asking for clarification of a Senior Tip I wrote a few months ago. Below is the answer to the question. The call made me think that there may be others with questions that they would like answered. If you have a question that you would like me to address in a Senior Tip, you are welcome to call me or email me at tpacker@srv.net.

The previous Senior Tip discussed how community and separate property are treated differently under Idaho inheritance laws. The question that was asked was how do you know whether property is community property or separate property.

Here are the definitions of separate property and community property:

All property the husband or wife owned before marriage, and all property acquired during the marriage by gift or inheritance, and any proceeds from this property, is considered separate property. (Idaho Code § 32-903)
All other property acquired during the marriage by either husband or wife is community property. (Idaho Code § 32-906.)

Here are a few examples of the different ways separate and community property are treated under Idaho law:

As to community property, the surviving spouse will inherit all the deceased spouse’s community property and ½ of the separate property. The other ½ of the separate property will pass to the surviving parents or children of the decedent. (Idaho Code § 32-102)
The separate property of one spouse is not liable for the debts that the other spouse contracted before the marriage. (Idaho Code § 32-910-11)
Either spouse alone can incur a debt that obligates their community property, but not the separate property of the other spouse. However, as to the community property, both spouses must sign to purchase or sell real property. (Idaho Code § 32-102)

If a husband or wife brings separate property into a marriage and commingles it either with the community property or the separate property of the other spouse, it may be converted into community property. For example, if you receive an inheritance, and you deposit the money into a community bank account it will become community property. If each spouse sells their home, and they buy a new home together with the proceeds of their sales, the new home will be community property.

You can give your separate property, or ½ of your community property to whomever you want after your death, but you must have a Will to do so. If you don’t have a Will, your property will be distributed by the laws of the state as explained above.

Many people, not understanding these laws, make decisions that produce results they did not intend.

September 2018

Where There’s a Will There’s a Way!

Choosing to make a Will ensures your estate goes to whom you intend.

Some people don’t see the importance of making a Will. A Will is a written declaration of what will happen to a person’s money and property after they die.

Under Idaho inheritance laws, if a married person dies without a Will, the spouse inherits all the community property and half of the separate property. The remaining half of the separate property is inherited by the decedent’s children.

If, however, the decedent is single and has no children, the next in line to inherit would be the decedent’s living parents. If the parents are deceased, the decedent’s siblings would inherit the decedent’s property. If there are siblings, the estate is divided by the number of siblings, living and dead. Each living sibling receives one share. The share of a deceased sibling is divided equally between his or her children.

Sometimes people fail to make a Will, but verbally state to whom they want their property to go. A Court will not honor a verbal statement. If there is no Will, the inheritance laws must be followed.

I know of a situation where a man died, who had never married and had no children and whose parents were deceased. He told his siblings that he wanted them to have his estate, but he never wrote a Will. His estate ended up being divided among his nieces and nephews, to whom he had never intended to give any money or property.

In another situation, a couple had lived together for years, but never married. They never got around to making Wills and then one of them unexpectedly died. Sadly, the surviving partner inherited nothing. If the deceased partner had written a Will, she could have left everything to her partner.

Where there’s a Will, there’s a way for your property to go to those you intend. By creating a Will, your desires will be followed. You can name a Personal Representative to administer your estate, you can name a Guardian and Conservator for a minor or disabled child, and you can designate who will receive your estate.

August 2018

Common-Law Marriage

Common-Law Marriages after 1996 are not recognized in Idaho.

Occasionally, I encounter couples that are living together, but have never gone through a formal marriage ceremony. This situation raises the issue of common-law marriage, which is widely misunderstood. Common-law marriages entered into before January 1, 1996 are recognized in Idaho. However, after January 1, 1996, Idaho does not recognize common-law marriage—consent to marry alone will not constitute a marriage; it must be followed by the issuance of a license and a solemnization ceremony. (Idaho Code 32-201)

If you are trying to prove that you have a common-law marriage, that was entered into prior to 1996, you would have to establish the following four requirements: (1) The man and the woman must both have been eighteen years of age or older; (2) they must have consented with each other to be husband and wife; (3) after they consented the parties both assumed marital rights, duties, and obligations to each other—this requires that they lived together as husband and wife, treated each other in a manner typical of married people, and held themselves out as husband and wife; and (4) this was done while living in the state of Idaho.

By abolishing common-law marriage in 1996, Idaho eliminated much of the uncertainty, ambiguity and inconsistencies that surrounded common-law marriage.

Living together in Idaho after 1996, without a solemnization of your marriage, may affect your eligibility for Social Security and Medicaid benefits. In addition, you will not inherit from your significant other unless they have made provisions for you in their Will.

July 2018

Retaining a Life Estate

If you have a small estate, you can deed your house and still be able to live there until you pass away, and avoid probate.

If you have a simple estate, you might want to consider passing your house, using a Gift Deed and retaining a life estate. This type of deed conveys your house to a person or persons and reserves to you, the Grantor, the right to live in the house for the rest of your life. The ownership in the property is divided into two interests: a life estate and a remainder interest. The person who holds the life estate has the right to possess the property during his or her lifetime. The person who has the remainder interest has the right to possess the property after the life tenant passes away.

Example: John Smith, in consideration of the love that he has for his daughter, Laura, conveys his house to her as her sole and separate property reserving and excepting to John the right to all rents and profits on the property and the right to use the property for as long as John lives. At John’s death, the house passes to Laura simply by recording a Death Certificate, without having to go through probate.

If you want to use a deed retaining a life estate, there are a couple of things you should know. First, once your have deeded the property retaining a life estate, you can no longer sell the property without the signature of the person holding the remainder interest. For example, a woman deeded her home to her daughter and retained a life estate. Later, she had a falling out with her daughter. She wanted to sell her home and move, however, her daughter refused to sign the deed, so the woman was unable to sell her home. Second, if you deed your home and retain a life estate and later apply for Medicaid, your life estate interest may be counted as an asset towards eligibility for Medicaid.

A Gift Deed retaining a life estate is a way to transfer your property without going through probate and still retain the use of the property during your life time. Make sure you understand the risks before using this type of deed.

June 2018